assemblées n'ont pu convenir de son véritable sens relativement aux effets que le consentement du père peut produire à l'égard de la femme du fils et de savoir QUAND, COMMENT, et sous QUELLES CONDITIONS elle peut demander douaire sur les BIENS DU PÈRE DE SON MARI."* It was, however, recognized as a general rule that the daughter-in-law was entitled to her dower not only on her husband's succession, but also on the succession of his parents and grandparents for the enjoyment of one third of the whole real property which would have devolved to the lot of her husband had he survived them.

A question has been put how far the modern law affects the rights of daughters-in-law, married at the period of its promulgation, to their dower on their father-in-law's estate. After mature consideration, we come to the conclusion,

1. That all daughters-in-law who held their right of dower by virtue of a conventional agreement or marriage contract to which their fathers-in-law had been a party, will not be affected by the modern law.

2.That all daughters-in-law, even though they should have been widows at the time of the law's coming into operation, if their father-in-law survived the third of August, 1840, are not entitled to a dower on any estate he may have disposed of even previous to that date.

3. That all daughters-in-law married at the above date and . who held their right of dower by virtue of the old law, as contradistinguished from a marriage contract, are not entitled to dower on the estate of fathers-in-law who have survived that period and that because holding their rights from the law it was in the power of the present legislature to abolish the decrees of its predecessors in reference to all rights that were not absolutely and irrevocably acquired at the date of its promulgation, as was the daughter-in-law's dower in the above instance, and that according to the famous axiom that nothing is more natural than that the authority which grants certain privileges, or imposes certain burthens, should have the power of abrogating them, nihil tam naturale est quam eo genere quidquid dissolvere quo colligatum est.† Other* Basnage's Commentary on the 359th article.

† L. 27, ff. De regulis juris.

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wise the present generation could irrevocably bind posterity, and thus place absolutely beyond its controul the power of governing itself according to such regulations as might in future ages be deemed more conformable to its wants and desires than those which at present obtain.

Nor are laws the only regulations which are thus controled. Agreements, whether verbal or written, are changed, modified, or destroyed, by a similar process, that is, they vanish or are superseded by other laws, agreements, or contracts which governments or private individuals may think proper to enter into or promulgate. And, however much these changes may affect some individuals, none can complain that the law takes a retrospective effect whilst rights absolutely and irrevocably acquired are not affected by it, in contradistinction to those which are still pending; that is to say, which are not yet, but may eventually be acquired, and which therefore may be affected by a change in the law. And this is conformable to the rule Nihil tam naturale est, quám eo genere quidve dissolvere quo colligatum est. Ideo verborum obligatio verbis tollitur. Nudi consensus obligatio contrario consensu dissolvitur. Omnia, quæ jure contrahuntur contrario juré pereunt.* The law

by which perpetual entails were limited within certain degrees by the Chancellor De L'Hopital, and that by which parents were allowed to sell all their property, notwithstanding that by the law of Normandy, repealed at the revolution, they could never dispose of more than two thirds, the remaining third being vested in the children at the date of the marriage of such parents,† are memorable instances in which the above rules have been judiciously applied by the supreme Courts of judicature without in the slightest degree infringing on the sacred adage, that laws can have no retrospective effect.

But those widows who have enjoyed their dower since their father-in-law's decease, and previous to the third of August, 1840, cannot be disburbed; for the law having no retrospective effect, cannot destroy such acquired rights.

* L. 27, ff. De diver. reg. jur. antiq.

†This portion, reserved for the children, was called the Tiers Coutumier de Normandie, and consisted, as Basnage states, "dans la propriété du tiers de l'immeuble destiné pour le douaire de la femme et acquis aux enfans du jour des épousailles.”—See article 399, Douaire propre aux enfans, and Commentary thereon. See also the 404th article, by which the same right was bestowed upon the children over their mother's estate as they possessed by the 399th over their father's.

CHAPTER VIII.

PARENTS CAN NO LONGER MAKE ANY BEQUESTS AMONG THEIR CHILDREN TO ALTER THEIR PORTIONS

OF INHERITANCE.

In a former chapter on Wills we saw what power a testator possessed of devising his property among relatives and strangers; in the present, we shall examine his power of bequest in reference to his children, and which is regulated by the twenty-ninth article, which should have been the fifteenth ; that is to say, placed immediately after that which regulates the power of bequeathing generally. Not having been demanded by the Petitioners, the twenty-ninth article was introduced by the Court's committee, who considered the custom which granted a widow mother the power of bestowing on one child a greater share of her property than on another, whilst the same power was under any circumstances absolutely refused the father, an anomaly, which it certainly was; but to abrogate this anomaly the committee were surely not reduced to deprive the mother of a power, which it is right she should possess, in order to lay her under the same impolitic restrictions as the father. It would, on the contrary, have been much wiser to have assimilated their powers by releasing the father from his fetters and bestowing on him the same faculty as a mother possessed, or it would have been the wisest plan, to have at once granted both of them the faculty of absolutely bequeathing one third of their property, as they thought proper, among their children, as they may among strangers. The Court's committee ascribe the anomaly which formerly existed, to the decisions of the Court, whose members were induced to confirm this power in the mother, in order that she might be enabled to distribute her property as she pleased among her own and late husband's children, rather than re-marry, and thus bestow on a stranger her personal property, which in consequence passed beyond their controul. Notwithstanding the grounds on which the Court thus established a jurisprudence opposed to the principles of the law, their motives were unimpeachable, and their

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views as honorable as they were just, and, however illegal their decisions, because opposed to the positive decrees of the law, which they are ever bound to obey, notwithstanding previous erroneous decisions to the contrary, they still commanded respect and a ready compliance, because conformable to the spirit of the times, which revolts at the idea of the parents being, with regard to the distribution of property among their offspring, chained up like as many wild animals, to whom the slightest latitude cannot be granted, through a misconceived fear of some turning it to a bad purpose. But what singular instances of human frailty do not even courts of justice sometimes exhibit; its members, with the honorable intention of avoiding the consequences of an unjust law, established an unsound jurisprudence, and yet when an opportunity presents itself of giving full scope to these honorable intentions, by the introduction of a wise and just law, we find them formally consecrating a system wherein justice is more frequently honored in the breach than in the observance, and which their own decisions had turned into disrepute. The course followed by the legislature and recommended by the Court's committee on this occasion, presents as singular an anomaly as is any where recorded in the annals of legislation for though we frequently see jurymen avoid the severity of penal enactments, by acquitting the guilty rather than subject them to unreasonable punishment, and sometimes find even judges modifying, not to say evading, the unnecessary restrictions imposed by the civil law, and still more frequently a great portion of the community not only openly transgressing but priding themselves on the transgression of such regulations as violently thwart their feelings and desires, yet all these indications of a wrong and unjustifiable system are commonly considered as the forerunners of a change in conformity with, and not in opposition to, their desires, as was the case when the first clause of the twenty-ninth article abrogated the wise and just, however unsound, jurisprudence which the Court had, by a series of uniform decisions, managed to consecrate.

We are aware that many persons entertain a less unfavourable opinion of the arbitrary restrictions established by the Norman law, than of the extreme latitude granted by the

law of England to parents over their property, but is there no just medium to be found between these extremes, and is it because a parent should not be allowed to give away the whole of his property to one child, that he should not be permitted to bestow on a single one of them the smallest trifle without being accountable to the others? But it may be said, difficulties present themselves on every side: under such circumstances how are we to proceed to find the safest rules for determining our judgment, if it be not to the laws of the most civilized people, which have all to a certain degree, and some even to an unlimited extent, recognized in parents the power of bequeathing their property among their children? But, without referring to Montesquieu and Pascal, who declare property to be a creature of the civil law, or to Basnage and Heinecius, who anticipate greater evils than benefits from the institution of wills, we shall support our views respecting the policy and justice of placing a certain portion of property at the absolute disposal of parents, without any reference as to the parties, whether their children or others, who may be the immediate objects of their bounty, by the authority of one of the greatest civilians of any age or nation, Emerigon, who sets forth the following criterion to go by in judging of the excellence or defects of human laws: "La tranquillité publique," says he, "la paix des familles, la nécessité de prévenir les procès,* portent souvent le législateur à faire des réglemens qui, malgré leur impuissance à prévenir toute injustice particulière, procurent le plus grand bien; ce qui suffit pour qu'on doive s'y soumettre sans répugnance. Le droit naturel n'est pas alors violé; il est simplement modifié, pour ce que l'intérêt de la société civile l'exige."+ And quoting from D'Aguessau he observes: "Il en est des lois comme des autres ouvrages humains; on n'en voit point qui n'ait quelque imperfection, ou qui ne soit susceptible de quelque difficulté. Toute la sagesse du législateur, et toute la perfection de la loi, consistent souvent non pas à faire une

We have seen that compelling parents to bestow on children an equal share of their property, without any regard to their respective wants, station in life, or advantages, other than pecuniary, which some have received above the rest, was not the most likely manner to preserve tranquillity in families.

Emerigon, des Assurances,